People ex rel. Drennan v. Williams

Mr. Chiee Justice Cartwright delivered the opinion of the court: The relators presented to the circuit court of Sangamon county their verified petition for leave to file an information against the appellants, who it was alleged were unlawfully holding and exercising the office of members of the board of education of Community High School District No. 197, charging that the district was not legally organized nor the appellants elected as a board of education because neither the election for the creation of a district nor the election for a board of education, was held in conformity with the Australian ballot system. Leave was granted and an information was filed in the name of the People, to which the defendants filed a plea setting out the proceedings for the organization of the district and for their election as members of a board of education; admitting that no booths were used at the first election but alleging that three were used at the second; admitting that no indorsement was printed on the back of the ballots at either election, except that the judge giving out the ballots indorsed thereon his initials, and alleging that each election was conducted in accordance with the provisions of sections 22 and 23 of the Australian Ballot law. To this plea a demurrer was filed, which was sustained by the court. The defendants elected to stand by their plea and judgment of ouster was entered, from which this appeal was taken. The decision of the controversy depends upon the construction to be given to the act amending the School law as revised in 1909 by adding thereto a section to be numbered 89a (Laws of 1919, p. 908,) and section 86 of the revision of 1909 as amended in 1917. (Laws of 1917, p. 735-) Section 890, which was added in 1919 to the revision of 1909, provides for the organization of a community high school district'by an election, and further provides that if a majority of the votes cast at such election shall be in favor of establishing a community high school, an election shall be held for a board of education consisting of five members, and provides: “The manner of holding elections shall be governed by section 86 of this act.” Section 86 as amended in 1917 follows section 85, which provides for an election for the organization of a township high school district, and provides that if a majority of the votes cast shall be in favor of establishing a township high school, an election shall be held for a township high school board of education, and the manner of holding the election is governed by the following provision: “Such election shall be held under the Australian ballot system as provided in the general election laws and as detailed in section 22 and section 23 of an act entitled ‘An act to provide for the printing and distribution of ballots at public expense, and for the nomination of candidates for public offices to regulate the manner of holding elections, and to enforce the secrecy of the ballot,’ approved June 22, 1891, in force July 1, 1891, at the school house or such other place as shall be designated by the proper officers in the notice of election.” The general- provisions of the Australian ballot system, as provided in the general election laws, were not observed in the elections in question as appears by the plea, and the question presented is whether it was the intention of the General Assembly that the elections should be conducted under such general provisions so far as applicable to elections of like character, or whether the provisions of sections 22 and 23, alone, should apply. The general rules by which the legislative intent is to be detennined have been often stated and are well known and need not be here repeated, and the nature of the act under consideration is such that but little aid is afforded by adjudged cases. The consideration of the question is also rendered more complicated by the confusion that has been introduced in legislation by the expansion of the school system. Until 1872 the legislative plan was for State-wide compulsory elementary education in district schools, but in that year provision was made for organizing township high schools. In 1909 the law relating to schools and the school system was revised, and substantially the same provision as in the act of 1872 was made for establishing township high schools. (Laws of 1909, p. 342.) That revision provided for a number of different elections, none of which were to be governed by the Australian Ballot law, which had been enacted in 1891. Following the revision of 1909 a great many acts have been passed, either amending the law as revised or previous acts, or independent of either, or legalizing elections, so that the acts as a whole present an appearance of what has been called patchwork legislation. The first of these acts which related to elections was passed in 1911, and amended an act passed in 1903 by which the elections in districts wholly within or partly within and partly without a city having an election commission were to be conducted under the Australian ballot system and acts amendatory thereof, and that act brought within such elections all the applicable provisions of the Australian Ballot law. (Laws of 1911, p. 500.) Three other school acts were passed in the same year of 1911 relating to elections concerning high school districts, amending the revision of 1909, and none of them contained any reference to the manner of holding elections. In 1913 the General Assembly passed two acts, one amending the revision of 1909 by adding a new section 126a, and the other amending section 91, concerning the purchase of property, building and moving a school house or levying a tax to extend schools beyond nine months in high school districts, and these acts made no provision concerning the method of conducting the elections. In 1915 section 1260, which had been added in 1913, was amended by incorporating in it the same provision contained in section 86 and in the same language. (Laws of 1915, p. 626.) It will therefore be seen that there'has been no general legislative plan concerning the method of holding school elections and no aid can be derived from a history of the legislation. The language of section 86 is inclusive of all applicable provisions of the Australian ballot system by the provision that elections shall be held under that system as provided in the general election laws and as particularized, detailed or designated in sections 22 and 23. Sections 22 and 23 provide for the particular manner of voting. Section 22 provides, so far as material here, that the voter shall be allowed to enter the space enclosed by the guard rail, and one of the judges shall give him one, and only one, ballot, on the back of which such judge shall indorse his initials in such manner as they may be seen when the ballot is properly folded; and section 23 provides that on receipt of his ballot the voter shall forthwith, and without leaving the enclosed space, retire alone to one of the voting booths and prepare his ballot by making in the appropriate margin or place a cross, or writing in the name of the candidate of his choice in the blank space, or making a cross against the answer he desires to give to a question submitted to a vote of the people. If these provisions should be regarded as the only ones intended by the General Assembly to govern the election they would prevent an illiterate or physically disabled voter from casting a vote, because by their terms he could not have assistance. The constitution secures to every citizen having the requisite qualifications a right to cast his vote, regardless of the question whether he is able to read or write or understands the English language or is physically disabled. These sections do not in terms prohibit assistance, but their provisions are such as render any assistance impossible, and the necessary result would be that they deprive the citizen of his constitutional right. Section 24 provides a method of assistance, and its provisions were held to be mandatory in Gill v. Shurtleff, 183 Ill. 440. It is the settled rule that where an act is susceptible of two constructions, one of which will sustain and the other destroy the act, that construction will always be adopted which will sustain it. To include section 24 in the statutory provision of section 86 is clearly within the language of that section, as it is a part of the Australian ballot system as provided in the general election laws, and unless it is included the act must be held unconstitutional and void. If section 24 must be included, then it is clear that the legislative intention was not to limit the application of the Australian ballot system to sections 22 and 23, but to cast about the election all the protection provided by the Australian Ballot law. There is a further reason for concluding that it was intended to protect the elections for township high schools and community high schools, to which sections 86 and 126» are limited, in the fact that there is a very wide difference between such elections and the ordinary school district election. Such districts embrace large territory and an extension and expansion of the school system and involve increased powers of taxation, and, as is well known, create great public interest and result in bitter and acrimonious contests. These considerations exclude ignoring or disregarding any words of this statute on the ground that the General Assembly intended differently from the language employed. The court is not authorized to tamper with language employed by the General Assembly for the purpose of producing results which the court may conclude the General Assembly ought to have intended, even if such a conclusion could be reached in this case. The wisdom of any provision is not for the courts so long as it is within the legislative power and the manner of conducting elections, and safeguards to be established are for the General Assembly and not for the courts. An election for a community high school cannot be conducted under the Australian ballot system, as provided in the general election laws and as detailed in section 22 and section 23 of that system, unless all applicable requirements of the system are observed. The court did not err in sustaining a demurrer to the plea, and the judgment is affirmed. r , , ~ r